Limited and Open Government

New Restraints on Emergency Powers Aren’t Perfect, But They Are Better

“Limited government.” Do we have it?

2020 put that question to the test, and most would answer in the negative.

When the government can shutter businesses, force healthy people to “quarantine” in their homes, ban singing in church, fine folks for not wearing a piece of cloth, and prolong such mandates for months, it becomes apparent that executive branches have been empowered to a degree far beyond what most previously imagined.

Yes, COVID-19 is real. Yes, it’s a risk to many. But the response from the state has made clear that previous limits on the executive branch, such as they were, did not adequately protect individual rights. From state to local governments, executive orders and fiat decrees dictated the behavior of innocent people who felt they had no recourse to address their grievances and go about their lives as they desired.

And even when the Legislature tried to step in, it wasn’t enough.

For example, last year the Utah Legislature elected not to renew one of Governor Herbert’s executive orders, opting to let it expire along with the executive branch’s exercise of its increased powers. However, Herbert circumvented the Legislature on tenuous legal grounds by simply issuing a brand new emergency declaration that effectively duplicated the previous one.

This allowed the Governor to basically ignore the Legislature and continue to exercise augmented powers. The existing emergency laws contemplated short-term emergencies that need a dynamic response from the executive branch where the Legislature would not have time to review, discuss, and reform laws as necessary. However, a prolonged pandemic and the government’s response to it do not meet these criteria at all. The Legislature clearly intended for the emergency powers to expire, and the Governor basically ignored them and continued claiming these powers as his own.

The Legislature didn’t take too kindly to this, of course. So, several policymakers put their heads together to develop a range of restrictions on executive power that would get the signature of the new Governor, Spencer Cox. Senator Evan Vickers sponsored the bill which became Senate Bill 195, to limit restrictions on public health orders and emergency declarations, limit executive authority, and impose significant legislative oversight and control into the process.

The new law, which was indeed signed by the Governor, implements many changes, including:

  • allowing the Legislature to terminate a public health order from the state health department —  and allowing a county council to do the same for a local health department;
  • substantially limiting the penalties for non-compliance of an order;
  • requiring the health department to notify legislative leadership 24 hours in advance of their declaring a public health emergency;
  • limiting public health emergencies to a maximum period of 30 days (and they can be terminated earlier by the department or the Legislature);
  • allowing only the Legislature to extend a public health emergency beyond the 30-day limit;
  • prohibiting the department from declaring a new public health emergency for the same illness or occurrence as the previous one unless there are exigent circumstances;
  • requiring a public legislative meeting to evaluate the need to extend a public health emergency at the request of the health department, and allowing testimony from the public;
  • prohibiting restrictions on religious gatherings unless they can be demonstrated to accomplish a compelling governmental interest;
  • imposing all these restrictions, and more, on county public health departments and county councils; and
  • prohibiting local health departments from trying to restrict people’s activity without the approval of the county executive.

These and the other changes continued in SB 195 will help ensure that any future emergencies or executive branch responses to such incidents are restrained, reasonable, and subjected to legislative oversight, public input/involvement, and limitations on such powers in order to ensure they not be abused as they recently have been.

SB 195 was not a perfect bill; there were many aspects we would have liked to see strengthened. But, of course, legislators had to balance their own shared desires for stronger language against the executive branch’s defensive desire to maintain discretionary power for future emergencies.

The law, as it now stands, is a marked improvement on what existed before. However, it remains to be seen how well the new restrictions will keep future executive branch employees in check in order to protect essential personal freedoms despite whatever future emergency occurs.